Opinion on Rehearing.
Beck, J.*36samb as no. i. *35I. The petition upon which rehearing was granted complains of the foregoing opinion, and ’ *36insists that it should have reached a different resu]^ on the ground that the conclusion stated therein, that it does not appear that the garnishee ever had the property for which he is sought to be charged in his possession or under his . control, is not in accord with the record. Counsel embody their complaints in the following proposition as to the facts shown by the record: “(1) Possession of the property is admitted by the pleadings. (2) Possession of the property is fully established by the evidence. (3) Possession of the property was conceded in the court below, and the case tried on that theory. (4) The claim that the garnishee was not in possession of the property is made for the first time in this court. (5) The motion for a new trial was not in any manner based upon the alleged want of possession. (6) The question of want of possession is not raised by the assignments of error.”
II. The answer of the garnishee denies that he has in his possession, or under his control, any property of the defendant. • Plaintiff files a pleading controverting the answer of the garnishee. It alleges that the garnishee, when he was served with garnishment process, and subsequent thereto, had in his possession and under his control certain specified property of defendant. The garnishee files an answer to this pleading, in which he avers that he “had at no time since the notice of garnishment was served on him any * * * property of defendant in his hands, 'or under his control, as stated in plaintiff’s pleadings or otherwise.” It is made to appear quite clearly that the garnishee denied in his pleadings that he had possession of the property.
III. We think the evidence sustains the garnishee’s claim that he did not have possession of the property.
IV. The garnishee not only denied in his pleading, but in his answer to the garnishment, and in his testimony, that he had possession of the property, and upon issues thus arising the case was tried. This is a sufficient answer to the third and fourth points of plaintiff’s claim above quoted.
*372 Appeal • ' raising question below. V. The court overruled a motion made by the garnishee for judgment non obstante, for the reason that the íur.Y did not find that the garnishee had possession of the jiroperty. The question of . garnishee’s possession was thus passed upon after verdict. It was not necessary that it should be renewed in the motion for a new trial.
VI. The eleventh assignment of error is ' based upon the ground that the court held that the garnishee’s possession of the property was found by the jury. This assignment of error does raise the question of possession of the property. These views’ sufficiently answer the objections urged upon the rehearing to the opinion heretofore filed in the case. Reversed.
Robinson, J., having been of counsel in this case, took no part in its decision.